You inform us that the Adult Probation Commission is
considering a proposal to permit the use of electronic monitoring
devices as a condition of probation. The devices will be
employed primarily to monitor a probationer's compliance with
curfew hours imposed by the court. Some of the monitoring
systems require the probationer to wear an electronic device
attached to his or her body at all times; all require the
probationer to have access to a telephone in his or her
residence. Concern about the constitutionality of this use of
electronic monitoring devices has prompted the following
questions:

1. Do probationers have any constitutionally protected
interest which would prohibit the use of electronic monitoring in
the home as a condition of probation over the objections of the
[probationer]?

2. Do family members or cohabitants [of] probationers have
any constitutionally protected interest which would prohibit the
use of electronic monitoring in the home they share with
probationers over their objections?

3. Does the requirement of some systems that the probationer
wear a device attached to his or her body at all times have any
influence on the answers to questions 1 and 2?

4. Does the requirement of some systems that an electronic
monitoring device be attached to the telephone in the home have
any influence on the answers to questions 1 and 2?

In our opinion, the employment of electronic monitoring devices
as a condition of probation does not violate a constitutionally
protected interest of the probationer or a third person residing
in the probationer's home. Neither do we believe that the
attachment of the particular devices you have described to either
a probationer's body or a telephone in his home violates any
constitutionally protected interest of the probationer or a third
person residing in the probationer's home.

I.

In your request letter you describe three types of electronic
monitoring systems under consideration. The first type of system
is called an "active" monitoring system:

Active monitoring. This requires that the probationer have a
standard telephone in his home. A monitoring device is hooked up
to the phone. The probationer wears a device that transmits
signals which the monitor can detect within a certain small
radius. The monitor is connected through the telephone line to a
computer which is programmed with the schedule that the
probationer has been ordered by the court to observe.
Communication between the monitor and the computer shows whether
the probationer is at home at the time he is supposed to be.

A fuller description of the active monitoring system was provided
in a report recently issued by the Texas Criminal Justice Policy
Council:

The first type of these systems, referred to in the earliest
literature as 'active' systems consists of a transmitter unit, a
receiver-dialer unit, and a central office computer or receiver
unit. A transmitter, which is strapped to the offender,
broadcasts an encoded signal to the receiver located in the
offender's home. The receiver is connected by the telephone to
the central office computer or receiver unit. When the
transmitter being worn by the offender is within range of the
home receiver, the system indicates that they are at the
residence. When the offender goes beyond the range of the
receiver unit, i.e., leaves the home, the signal from the
transmitter is not received and the system indicates absence. If
the offender leaves home during an unauthorized period, in
violation of their curfew, a violation report is generated. If,
however, the offender leaves the home at a time they are
authorized to do so, the times of arrival and departure are
noted, but no violation report is generated.

The second type of device described in your letter are the so-called "passive" systems:

Passive monitoring. This also requires a standard telephone
and a monitoring device in the home. The device worn by the
probationer does not send signals, but must be placed in the
monitor when the central computer calls the probationer's home at
random intervals during the periods when the probationer is
ordered to be at home. The monitor verifies that the correct
device has been used to respond to the call.

The Criminal Justice Policy Council report provided this
description of passive monitors:

A second type of unit utilizing telephone lines for
communication has been referred to in the earlier literature as a
'passive' system. It consists of a central office computer, an
encoder device, and a verifier box. The encoder device is worn
either on the wrist or ankle by the offender. The computer is
programmed to generate either random calls or to call at specific
times to the offender's home. The offender is required to
provide voice identification and then insert the encoder device
into the verifier box, confirming their identity. The system
will provide exception reports if the phone is not answered, if a
busy signal is received, if an operator intercept message is
detected, or if the offender fails to properly insert the encoder
device into the verifier box.

Electronic Monitoring, supra, at 6. The report explained the
difference between active and passive systems in terms of the
amount of monitoring accomplished by each type of system.
"Active" systems operate continuously and monitor the probationer
from the moment the transmitter is within the range of the
receiver. In contrast, "passive" systems are activated by the
telephone calls from the central reception office and operate
only for the duration of the telephone call. Id.

The third type of monitoring system under consideration does
not require the probationer to wear any device at all but does
involve the use of a telephone. A centralized computer makes
telephone calls to the probationer's home at random times during
the period in which the probationer is required by the court's
order to be at home. The probationer is directed to repeat
selected words and phrases or to answer a series of questions.
See Electronic Monitoring, supra, at 6. The probationer's voice
is then electronically compared with a voice print previously
supplied by the probationer.

As of July 1986, electronic monitoring systems of one type or
another were in use in eight states. Electronic Monitoring,
supra, (Appendix D). The state of California recently enacted a
statute authorizing the use of electronic monitoring devices as
part of a three-year home detention pilot project. Cal.Penal Code
s 1203.015 (West Supp.1987). The Texas Legislature recently
approved the employment of electronic monitoring devices in
probation and parole programs, but its provisions affect
probations granted or modified after September 1, 1987. Acts
1987, 70th Leg., ch. 1, ss 7, 15, at 1, 14 (S.B. No. 215). This
opinion does not address the constitutionality of the provisions
of this legislation. It addresses only the general question of
the constitutionality of electronic monitoring devices.

II.

The Adult Probation Law states that the terms and conditions of
probation may include, but are not limited to, those conditions
expressly provided in the act. Code Crim.Proc. art. 42.12, s
6(a). The courts are not limited to the conditions enumerated in
the act but have wide discretion in setting reasonable conditions
of probation. Macias v. State, 649 S.W.2d 150 (Tex.App.--El Paso
1983, no pet.). Conditions of probation should bear a reasonable
relationship to the treatment of the accused and the protection
of the public. Tamez v. State, 534 S.W.2d 686
(Tex.Crim.App.1976); Macias v. State, supra. Whether the use of
an electronic monitoring device bears a reasonable relationship
to the treatment of a particular probationer and the protection
of the public is a question of fact that cannot be determined in
an Attorney General's Opinion. See generally Attorney General
Opinion JM-307 (1985) at 5.

Your first question concerns whether a probationer has any
constitutionally protected interest which will prohibit the use
of electronic monitoring devices as part of his probation. It is
well understood that, because of their special status,
probationers are subject to limitations of their constitutional
rights from which ordinary citizens are free. Macias v. State,
649 S.W.2d at 152. Any restriction placed upon these rights,
however, can be justified only to the extent actually required by
the legitimate demands of the probation process and necessary for
the probationer's reformation and rehabilitation. Id.; see also
Tamez v. State, 534 S.W.2d at 692.

In the Macias case, the court adopted the test articulated in
United States v. Tonry, 605 F.2d 144, 150 (5th Cir.1979), to
determine whether a condition of probation is unduly intrusive on
constitutionally protected freedoms:

The conditions must be 'reasonably related' to the purposes
of the [Federal Probation] Act. Consideration of three factors
is required to determine whether a reasonable relationship
exists: (1) the purposes sought to be served by probation; (2)
the extent to which constitutional rights enjoyed by law-abiding
citizens should be accorded to probationers; and (3) the
legitimate needs of law enforcement.

Macias v. State, 649 S.W.2d at 152. Whether it is reasonable to
require a particular probationer to wear an electronic monitoring
device as a condition of his probation requires an evaluation of
the facts surrounding his illegal activity and his probation.
See Attorney General Opinion JM-307 (1985). It is nevertheless
possible to review the relevant authorities to determine whether
the mere use of electronic monitors in the probation system
impermissibly infringes upon a constitutionally protected
interest of a probationer or a third person residing in the home
of a probationer. Your questions raise issues under the First,
Fourth, Eighth, and Fourteenth Amendments to the United States
Constitution. We will devote the bulk of our discussion to the
issue of privacy in the probationer's home.

First Amendment Considerations

The First Amendment to the United States Constitution generally
protects an individual's speech, associations, movement, travel,
and religious beliefs from excessive governmental limitations.
See also Tex. Const. art. I, ss 6, 8, 27. A related concept is
the right to travel interstate, derived from the privileges and
immunities clause of the Fourteenth Amendment. See Edwards v.
California, 314 U.S. 160 (1941). Although persons serving a
probated sentence are entitled to enjoy these rights to a
significant degree, the courts have consistently held that such
rights may be limited to serve the purposes of probation.
However, because of the preferred nature of these rights, courts
critically evaluate probation conditions restricting them. See
Cohen and Gobert, The Law of Probation and Parole, s 5.10 (1983
and Supp.1986) [hereinafter cited as Cohen and Gobert]. The
interests which are implicated by your request are those relating
to associations, movement, and travel.

The courts have concluded that conditions curtailing a
probationer's associations with certain named persons does not
impermissibly infringe upon the right of freedom of association.
Tyra v. State, 644 S.W.2d 865 (Tex.App.--Amarillo 1982, no
pet.). Conditions which prohibit any contact whatsoever between
a probationer and a complainant have been upheld as reasonable
conditions of probation. Pequeno v. State, 710 S.W.2d 709
(Tex.App.--Houston [1st Dist.] 1986, no pet.). In appropriate
cases, probation conditions imposing a curfew are reasonable,
notwithstanding the limits they impose on a probationer's freedom
of movement and travel. See Salinas v. State, 514 S.W.2d 754
(Tex.Crim.App.1974). Conditions which require the probationer to
remain in a specified area are valid. See, e.g., Miller v.
State, 330 S.W.2d 466 (Tex.Crim.App.1959). However, a condition
which effectively banishes a probationer from a particular area
is invalid. See Johnson v. State, 672 S.W.2d 621 (Tex.App.--Corpus Christi 1984, no pet.) (banishment from county). Also, it
has been suggested that conditions limiting a probationer's
associations could threaten the probationer's right of privacy if
construed to extend to family members. Cohen and Gobert, supra,
s 6.16 (citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)).

Given these permissible limitations, we are not persuaded that
a probationer may object to the use of electronic monitoring
devices on the grounds that it interferes with his freedom of
association, movement, or travel. Electronic monitoring devices
appear no more restrictive than a condition directly limiting
movement; they simply provide greater assurance that the
probationer is conforming his conduct to the limitations attached
to his conditional liberty. Because the devices are incapable of
monitoring conversations, we do not believe that they will affect
a probationer's freedom of speech. The fact that the probationer
may be required under some systems to utter particular words or
phrases into a telephone does not change our opinion, provided
the condition requiring this conduct otherwise serves the
purposes of probation. Cf. United States v. William Anderson
Co., Inc., 698 F.2d 911, 913 (8th Cir.1982) (referring to terms
of probation which required price-fixers to deliver speeches to
civic groups about the evils of price-fixing), overruled on other
grounds, United States v. Missouri Valley Constr. Co., 741 F.2d
1542 (8th Cir.1984); United States v. Franks, 511 F.2d 25 (6th
Cir.), cert. denied, 422 U.S. 1042 (1975) (requiring arrested
defendant to submit voice exemplars violates no constitutional
rights so long as underlying seizure of the person was proper).

Privacy Considerations

The privacy interests of probationers and nonprobationers do
not draw protection from a specific guarantee of the federal
Constitution, but are instead protected by concepts derived from
the various guarantees of the Bill of Rights and the Fourteenth
Amendment, particularly the Fourteenth Amendment's concept of
personal liberty. See Roe v. Wade, 410 U.S. 113 (1973). Some of
these interests were addressed in our discussion of the First
Amendment. Here, we will discuss that privacy interest which we
believe is most directly implicated by the proposal to employ
electronic monitoring devices in the probation system--namely,
the reasonable expectation of privacy a probationer may have with
respect to the contents and happenings in his home. See
generally Alderman v. United States, 394 U.S. 165 (1969).

The Fourth Amendment's ban on unreasonable searches and
seizures has supported challenges to probation conditions
requiring the probationer to undergo random searches. See also
Tex. Const. art. I, s 9.

In Tamez v. State, supra, the defendant was placed on probation
after entering a plea of nolo contendere on a charge of
possession of marijuana. One of the conditions of probation
required the defendant to submit his person, residence and
vehicle to a search by any peace officer at any time. The Court
of Criminal Appeals invalidated the condition, stating it was too
broad and too sweeping and infringed upon the probationer's
rights under the Fourth and Fourteenth Amendments of the federal
Constitution and article I, section 9, of the state constitution.
534 S.W.2d at 692. The condition did not serve the ends of
probation and permitted harassing and intimidating searches
totally unrelated to his prior conviction or rehabilitation. Id.
An identical condition was invalidated by the Court of Criminal
Appeals one year after the Tamez decision. Basaldua v. State,
558 S.W.2d 2 (Tex.Crim.App.1977).

In the years following the Tamez and Basaldua decisions, the
courts have exhibited a willingness to accept conditions of
probation which require the probationer to undergo what are
arguably limited searches and seizures. In Macias v. State,
supra, the court approved a condition requiring a probationer who
had pled guilty to a charge of delivery of a controlled substance
to submit to weekly urinalysis tests administered by his
probation officer. The court concluded that the taking of urine
samples constituted a search but determined the condition was
reasonably related to the purposes of probation under Texas law
for three reasons. First, it served to dissuade the probationer
from possessing illegal drugs. Second, it promoted his
rehabilitation by providing the probation officer with means of
determining whether rehabilitation was taking place. Finally, it
protected society by deterring the probationer from engaging in
unlawful drug activities and by giving the probation officer the
ability to detect any such activity. 649 S.W.2d at 152-53. The
court noted that the terms of the condition were not overly broad
and unrestricted so as to permit the kind of intimidating and
harassing searches condemned in the Tamez and Basaldua cases.
See also Clay v. State, 710 S.W.2d 119 (Tex.App.--Waco 1986, no
pet.) (upholding an identical condition of probation).

The earliest decision considering the constitutionality of
electronically enhanced surveillance reflected the prevailing
view that for there to be a search under the Fourth Amendment,
the police must have physically intruded into a constitutionally
protected area. In Olmstead v. United States, 277 U.S. 438
(1928), the Supreme Court held that the placement of an
eavesdropping device on the defendant's telephone and the
subsequent monitoring of his conversations did not constitute a
search under the Fourth Amendment because the "wires are not part
of his house or office, any more than are the highways along
which they are stretched." 277 U.S. at 465. The Court later
upheld on similar grounds electronic eavesdropping upon
conversations in a neighboring office by the use of a
"detectaphone" placed against a common wall. Goldman v. United
States, 316 U.S. 129 (1942). In Silverman v. United States, 365
U.S. 505 (1961), the Court ruled that eavesdropping by means of a
"spike" microphone which penetrated a common wall constituted a
Fourth Amendment search.

The Supreme Court's decision in Katz v. United States, 389 U.S.
347 (1967), ushered in a new era of Fourth Amendment analysis.
In that case, the Court abandoned the "trespass" doctrine
employed in the Olmstead and Goldman decisions, declaring that

the Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home or
office is not a subject of Fourth Amendment protection.... But
what he seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.

389 U.S. at 351. The Court ruled that eavesdropping by way of an
electronic listening and recording device attached to the
exterior of a public telephone booth was a search for purposes of
the Fourth Amendment, requiring government agents to obtain a
search warrant in advance.

Justice Harlan, in a concurring opinion that was to eventually
serve as a guide to other courts, added that the majority opinion
of the Court established a twofold requirement--first, that the
person have exhibited an actual (i.e., subjective) expectation of
privacy, and second, that the expectation be one that society is
prepared to recognize as reasonable. 389 U.S. at 361. See
California v. Ciraolo, 476 U.S. ---, 106 S.Ct. 1809, 90 L.Ed.2d
210 (1986); Stewart v. State, 681 S.W.2d 774 (Tex.App.--Houston
[14th Dist.] 1984, pet. ref'd).

In the years following the Katz decision, the Supreme Court
considered the constitutional ramifications of surveillance
accomplished by means of other electronic devices such as pen
registers, Smith v. Maryland, 442 U.S. 735 (1979), and electronic
tracking devices, or beepers. United States v. Karo, 468 U.S.
705 (1984); United States v. Knotts, 460 U.S. 276 (1983). The
devices you describe have been compared to beepers, devices which
emit periodic signals that can be picked up by a radio receiver.
United States v. Knotts, 460 U.S. at 277. See Note, Electronic
Monitoring of Probationers: A Step Toward Big Brother?, 14
Golden Gate U.L.Rev. 431 (1984); Electronic Monitoring, supra.

In Knotts, the Supreme Court held that the warrantless
monitoring of a beeper placed inside a container of chloroform
did not violate the Fourth Amendment because it revealed no
information that could not have been obtained through visual
surveillance. The Court concluded that the monitoring of the
beeper while the container was being transported over public
thoroughfares did not invade any legitimate expectation of
privacy on the defendant's part. One question left unanswered
was whether the monitoring of a beeper falls within the scope of
the Fourth Amendment when it reveals information that could not
be obtained through visual surveillance. This question was
answered in the affirmative in United States v. Karo, supra.

In Karo the Court was confronted with the monitoring of a
beeper located inside a private residence, an area not open to
visual surveillance. The Court concluded such monitoring in the
absence of a search warrant or an exception to the warrant
requirement violated the Fourth Amendment rights of persons
having "a justifiable interest in the privacy of the residence."
468 U.S. at 714. The Court rejected the contention that law
enforcement officials

should be completely free from the constraints of the Fourth
Amendment to determine by means of an electronic device ...
whether a particular article--or a person, for that matter--is
in an individual's home at a particular time.

468 U.S. at 716.

In addition to the two-point analysis originating with Katz,
Texas courts have directed attention to the nature of the
activity claimed to be a "search." Where the activity is not
aimed at discovering evidence of a crime, some courts are
inclined to rule that the activity is not a search. These courts
view a "search" as a "quest for, a looking for, or a seeking out
of that which offends against the law." Vargas v. State, 542
S.W.2d 151, 153 (Tex.Crim.App.1976), cert. denied, 429 U.S. 1109
(1977); Garber v. State, 671 S.W.2d 94, 97 (Tex.App.--El Paso
1984, no pet.). See also Marshall v. United States, 422 F.2d
185, 189 (5th Cir.1970) ("search" implies a probing, exploratory
quest for evidence of a crime). Given this definition, it can be
argued that the monitoring of electronic devices in the manner
under consideration here is not a search, since the purpose of
the monitoring is not to uncover evidence of criminal activity,
but to confirm compliance with a condition of probation. The
monitoring devices (unlike beepers) are not to be employed in
conjunction with criminal investigations and therefore will not
convey information suggesting criminal activity is taking place
in the probationer's home. The report submitted to the Texas
Criminal Justice Policy Council advanced a similar argument:

It could ... be argued that the use of an electronic device
which merely indicates whether a person is complying with his
curfew restriction, would not constitute a search. The ...
device currently utilized as a condition of probation is not
capable of monitoring conversations, nor can it determine what
the individual is doing inside the confines of his home. Its
sole purpose is to ensure that the probationer is complying with
the conditions of probation. It is true that the ... device
generates information which could not otherwise be obtained by
visual surveillance, but that alone should not taint the device
because its installation is with the client's consent.

Electronic Monitoring, supra, at E-17-E-18.

These are persuasive arguments. However, given the conclusion
in Macias v. State, supra, that the taking of urine samples from
a probationer is a search and the fact that electronic monitoring
devices serve the needs of law enforcement in a manner similar to
the detection and investigation of crime, we will assume for the
sake of argument that the electronic monitoring of probationers
is a "search" for the purposes of the Fourth Amendment. Assuming
that a search occurs when an electronic device worn by a
probationer is monitored by probation officials, it is clear that
such monitoring cannot be justified in this state on a theory of
consent or waiver.

The Court of Criminal Appeals analyzed the issue of consent in
Tamez v. State, supra. After observing that a "probationer, like
a parolee, has the right to enjoy a significant degree of
privacy," the court ruled that the probationer's acceptance of
the condition of probation permitting warrantless searches did
not authorize searches in violation of the Fourth Amendment:

It is clear that protection afforded by the Fourth Amendment
and Article I, Sec. 9, Texas Constitution, extends to
probationers. This court has consistently and knowingly made
this clear in ruling on appeals from orders revoking probation.
(Citations omitted).

A diminution of Fourth Amendment protection and protection
afforded by Article I, Sec. 9, Texas Constitution, can be
justified only to the extent actually necessitated by the
legitimate demands of the probation process. A probationer may
be entitled to a diminished expectation of privacy because of the
necessities of the correctional system, but his expectations may
be diminished only to the extent necessary for his reformation
and rehabilitation.

Further, it is clear that in accepting the condition of
probation the appellant's 'consent' was not in fact freely and
voluntarily given. The choice to reject probation and go to
prison or accept the probationary condition was really no choice
at all. It was in legal effect coerced. (Citation omitted).

534 S.W.2d at 692. Thus, the use of electronic monitoring
devices in the probation system may not be justified on the
theory of consent.

The passage from Tamez just quoted above does, however, provide
the theory under which we believe the use of electronic
monitoring devices can be constitutionally justified. As the
Court of Criminal Appeals observed, probationers, because of the
conditional liberty they are granted, do not enjoy the same
expectation of privacy as non-probationers. Their expectation of
privacy is diminished only to the extent necessary for their
rehabilitation and the legitimate demands of the probation
process. Thus, where it is determined that a probationer may be
subjected to reasonable limitations on his freedom of movement or
associations, we believe that reasonable and minimal intrusions
into the probationer's privacy interests to confirm compliance
with the conditions of probation are permissible.

Indeed, the Code of Criminal Procedure has authorized minimal
intrusions of the probationer's privacy in the home for years.
Article 42.12, section 6(a)(5), authorizes the court having
jurisdiction to impose as a condition of probation the condition
that the probationer shall "[p]ermit the probation officer to
visit him at his home or elsewhere." We believe the privacy
intrusion resulting from the monitoring of the electronic devices
you describe is strikingly different from the intrusion resulting
from an actual visit by a probation officer. Our research has
yielded no Texas decision invalidating a condition of probation
based on section 6(a)(5) of article 42.12. The reason for this
may be that conditions of this type are considered an integral
part of the probation process and have been routinely sustained
elsewhere, even against a claim that they infringe on a
probationer's right of privacy. See Cohen and Gobert, supra, s
6.67 (citing United States v. Manfredonia, 341 F.Supp. 790
(S.D.N.Y.), aff'd, 459 F.2d 1392 (2d Cir.), cert. denied, 409
U.S. 851 (1972)). Thus, it is worth noting the courts have had
little quarrel with more intrusive conditions in the past.

Our discussion to this point has centered on the privacy
interests of the probationer. We must now address the interests
of third persons residing in the home of the probationer, the
subject of your second question.

In those states in which warrantless search conditions of
probation have been approved under the theory of consent or
waiver, the courts have not required special procedures, such as
obtaining a warrant prior to the search, to safeguard the rights
of third persons residing with the probationer. See People v.
Mason, 488 P.2d 630, 634 (Cal.1971), cert. denied, 405 U.S. 1016
(1972); State v. Griffin, 376 N.W.2d 62, 67 (Wis.Ct.App.1985),
aff'd, 388 N.W.2d 535, 541 (Wis.1986). But see State v.
Velasquez, 672 P.2d 1254, 1260 n. 3 (Utah 1983) (dicta suggesting
that a warrant be obtained prior to such searches). The rights
of such third persons will be affected whether or not a warrant
is required, and in view of the protection given the
probationer's rights, there is no need to require a warrant
simply to protect third persons' rights. State v. Griffin, 388
N.W.2d at 541.

Understandably, Texas courts have not had occasion to consider
this issue following the Tamez decision. One court which did
address the rights of third persons in this context framed the
issue thus:

We recognize that probationary status can and should carry
with it a reduced expectation of privacy. But a probationer is
living within society, not confined to a penal institution.... A
search of the probationer's home cannot avoid invading the
privacy of those with whom he may be living, whether they be
immediate family, other relatives, or friends. Probationary
status does not convert a probationer's family, relatives and
friends into 'second class' citizens.

....

We can only assume a 'respectable position' [in the debate
over the validity of warrantless search conditions of probation]
if we can give fair consideration to the rights of innocent third
parties who may be caught up in the web of the probationary
system or probationary process. These people are not stripped of
their right of privacy because they may be living with a
probationer or he may be living with them. While a probationer's
right of privacy may be justifiably diminished while on
probation, the rights of these people are not so diminished. We,
as well as the trial courts, would be derelict in our duties if
we failed to consider the rights of these innocent others so that
they are not swept away by the probationary process.

....

These privacy considerations are inextricably interwoven in
the relationships between a probationer and his family and
friends no less than in the relationships between a
nonprobationer and his family and friends. The search of a
probationer's home will inevitably affect the privacy of those
with whom he is living.

State v. Fogarty, 610 P.2d 140, 151-52 (Mont.1980). Quoting and
relying in part on Tamez, the Montana Supreme Court concluded
that an unlimited search condition was patently unconstitutional
under both the federal and Montana constitutions. The court also
held that in order to protect the legal interests of innocent
third persons, a search warrant based on probable cause must be
obtained before a probationer's residence may be searched. It is
doubtful that a condition authorizing a search of a probationer's
person or property authorizes searches of third persons or their
property. See People v. Veronica, 166 Cal.Rptr. 109
(Cal.App.1980). The courts are divided as to whether evidence
seized in a search conducted pursuant to a condition of probation
may be used against third persons residing with the probationer.
Compare People v. Veronica, supra, with Luke v. State, 344 S.E.2d
452 (Ga.App.1986).

The cases discussed in the preceding paragraphs involved
physical searches of the probationer's person or property
conducted by probation officials or police. Each incident
involved an actual, physical intrusion into the privacy of third
persons. We refer to these cases only to demonstrate the
difficulties that inhere when a condition of probation authorizes
a physical invasion of property shared by a probationer and
family or household members. Electronic monitoring devices do
not threaten third party interests in this manner. Therefore, the
assumptions made in the discussion of the probationer's privacy
interests cannot be made with regard to third party privacy
interests. By the same measure, we think the distinctions drawn
in the same discussion between the use of beepers and electronic
monitoring devices, distinctions not relevant to the privacy
interests of the probationer, are relevant here. The comparison
between the nature and level of intrusion posed by electronic
monitors and home visits by probation officers is pertinent here,
too.

In our opinion, the possibility that the privacy interests of
third persons residing with electronically monitored probationers
will be compromised is remote and the effects of any intrusion
into the privacy of the home ephemeral. As you describe them,
electronic monitoring devices convey no information regarding
activities within the home other than the presence of the
probationer. Indeed, the devices impart no information
whatsoever concerning the presence or activities of third persons
in the home. With one exception, the systems you advocate do not
subject the probationer to constant surveillance in the home and
thus pose the prospect of only sporadic and transient intrusions.
We do acknowledge the ever-present possibility that a condition
of probation, constitutional on its face, may be
unconstitutionally applied in a given situation. See, e.g.,
Cohen and Gobert, supra, s 6.16. However, you do not suggest, and
we shall not speculate, under what specific factual circumstances
a condition of probation impermissibly interferes with the
constitutional rights of third persons. Suffice it to say that
under the information we have been provided and upon our review
of relevant authorities, we cannot conclude that the mere use of
such devices compromises the privacy interests of third persons
living in a probationer's home.

Due Process Considerations

The Fourteenth Amendment's guarantee of due process may be
relevant in determining whether a probationer may object to a
particular condition of probation. See Cohen and Gobert, supra,
s 5.10.

The due process clause has been invoked to contest conditions
of probation which are vague or interfere with a probationer's
access to courts. Id. Due process and the Texas guarantee of
due course of law, Tex. Const. art. I, s 19, require a defendant
to receive a hearing before the imposition of conditions which
restrict personal freedom and liberty of movement. Warr v.
State, 591 S.W.2d 832 (Tex.Crim.App.1979). The conditional
freedom afforded probationers may not be terminated without
appropriate procedural safeguards. Gagnon v. Scarpelli, 411 U.S.
778 (1973). Whether a probationer may demand certain conditions
of probation is doubtful, however.

In order to support a violation of due process, a person must
establish a deprivation of liberty or property by government
action. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979).
The courts look to the nature of the individual's interest and
require the person to have a legitimate claim of entitlement to
it. Id. In Greenholtz, the Supreme Court concluded that a
statute which created a possibility of parole provided prison
inmates no more than a mere hope that parole would be obtained.
The parole eligibility provisions of article 42.12 have been held
to create no protectible interest under the due process clause.
Moncier v. State, 704 S.W.2d 451 (Tex.App.--Dallas 1986, no
pet.). Whether Greenholtz requires probationers to locate a
liberty interest in a statute, administrative rule, or
constitutional provision is open to debate. See Cohen and
Gobert, supra, s 2.27.

If Greenholtz is extended to probation granting procedures, it
is unlikely that a potential probationer will be deemed to have a
liberty interest in receiving particular conditions of probation.
A person convicted of a crime has no inherent right to probation.
See Cohen and Gobert, supra, s 4.02. In the parole setting, it
has been held that terms specifying where a parolee shall live
are not subject to a due process challenge. Alonzo v. Rozanski,
808 F.2d 637 (7th Cir.1986). Article 42.12, section 6(a), of the
Code of Criminal Procedure neither limits nor requires the court
to impose the conditions specified in that section. See Macias
v. State, supra. The primary limitation on the setting of
conditions of probation is that they be reasonably related to the
treatment of the accused and the protection of the public. Tamez
v. State, supra. Assuming that a potential probationer is an
appropriate subject for restrictions on his freedom of movement
and associations, we do not believe that either article 42.12 or
Tamez create an expectation that these restrictions will be
imposed in a particular manner. Since we have already concluded
that electronic monitoring devices are no more restrictive than
other acceptable conditions, we do not believe a probationer may
object to their use as a condition of his probation.

Your first two questions are answered in the negative.

III.

Your third question, concerning the possible requirement that a
probationer wear a device attached to his body during the period
of probation, raises an issue under the Eighth Amendment to the
United States Constitution, which prohibits the infliction of
cruel and unusual punishment. See also Tex. Const. art. I, s 13.
The few cases raising this issue suggest that conditions which
are excessively harsh or impossible to comply with may be invalid
under this constitutional provision. Cohen and Gobert, supra, s
5.10. The Eighth Amendment is relevant to your third question
because it has been raised to contest the validity of conditions
requiring the probationer to wear a particular item of clothing
or publicly display a symbol signifying his conviction for a
particular crime.

The Supreme Court has stated that the inquiry into the
excessiveness of a particular punishment involves two aspects:
first, the punishment must not involve an unnecessary and wanton
infliction of pain, and second, it must not be grossly out of
proportion to the severity of the crime being punished. Gregg v.
Georgia, 428 U.S. 153, 173 (1976). The second aspect is implicit
in the requirement that a condition of probation bear a
reasonable relationship to the treatment of the accused and the
protection of the public and is, in every case, a fact question.
See Tamez v. State, supra. We will therefore consider whether a
condition of probation which requires the probationer to wear an
electronic monitoring device involves an unnecessary and wanton
infliction of pain.

In one case, the defendant, on probation as a result of his
conviction in a purse-snatching incident, was ordered to wear
shoes with leather soles and metal taps on the heels and toes
anytime he left his house. People v. McDowell, 130 Cal.Rptr. 839
(Cal.App.1976). The probationer complained that this condition
of probation was tantamount to requiring him to wear a sign
proclaiming he was a thief. The court disagreed with the notion
that persons who wore shoes with metal taps were thought to be
thieves by the public and noted that the condition bore a direct
relationship to the probationer's budding career as a purse
snatcher. 130 Cal.Rptr. at 843. Compliance with the condition
would foster rehabilitation and promote public safety. The sound
of the taps, the court concluded, would remind the probationer of
the fact that he was on probation and would quell any temptation
he might have during the period of probation to engage in this
type of criminal behavior. Id. The court accepted the substance
of the condition, but ordered the trial court to clarify the
condition in light of an ambiguity concerning its application.
Id.

A recent Florida case upheld a condition imposed as part of
probation for a conviction of driving under the influence of
alcohol which required the probationer to affix to his personal
vehicle a bumper sticker reading, "CONVICTED D.U.I.--RESTRICTED
LICENSE." Goldschmitt v. State, 490 So.2d 123
(Fla.Dist.Ct.App.1986). The probationer likened the condition to
outmoded forms of publicly suffered punishment such as the stock
and pillory. The court observed, however, that "[t]he mere
requirements that a defendant display a 'scarlet letter' as part
of his punishment is not necessarily offensive to the
Constitution." 490 So.2d at 125.

The Florida court believed the rehabilitative effect of
probation may be enhanced if it "inflicts disgrace and contumely
in a dramatic and spectacular manner." Id., quoting United
States v. William Anderson Co., Inc., 698 F.2d 911, 913 (8th
Cir.1982), overruled on other grounds, United States v. Missouri
Valley Constr. Co., 741 F.2d 1542 (8th Cir.1984). The court in
the William Anderson case also approved behavioral sanctions
imposed as conditions of probation, citing their deterrent
effect:

Measures are effective which have the impact of the 'scarlet
letter' described by Nathaniel Hawthorne, or the English
equivalent of 'wearing papers' in the vicinity of Westminister
Hall like a sandwich-man's sign describing the culprit's
transgressions.

698 F.2d at 913.

The Goldschmitt court also considered the possibility that
innocent third persons might be punished by the use of the bumper
sticker, insofar as such persons might own or operate the
probationer's vehicle. Its doubts were removed when it was made
clear that the message on the sticker would be obscured with a
special device when persons other than the probationer were using
the vehicle. 490 So.2d at 126 n. 5.

The courts will not, however, sanction probation conditions
which are excessively harsh and demeaning. The Goldschmitt court
cited as an example Bienz v. State, 343 So.2d 913
(Fla.Dist.Ct.App.1977). Bienz concerned a probationer who was
placed in a halfway house with directions that he obey all
orders. The rules of the halfway house stated that the
probationer was free to leave if any task seemed demeaning. A
supervisor at the facility accused the probationer of behaving
like a baby and, as a learning experience, ordered him to wear
diapers over his clothing. The probationer balked at the order,
choosing to leave the facility instead. His probation was later
revoked. The court resolved the case on other grounds but
commented: "[s]uffice it to say that a command ... that an adult
male wear diapers in public would certainly be demeaning in the
minds of so-called reasonable men." 343 So.2d at 915; see
Goldschmitt v. State, 490 So.2d at 126.

It is apparent, then, that a probation condition which requires
the probationer to wear a prescribed item will not offend the
Eighth Amendment merely because it subjects the probationer to
some measure of public disgrace or embarrassment, provided the
condition otherwise serves the goals of probation. The
electronic monitoring devices you describe do bear the
possibility of exposing the probationer to public obloquy,
particularly those which must be worn on the probationer's body.
We do not believe the potential for such stigmatization, though,
renders the employment of such devices an excessive form of
punishment. Moreover, we think the use of electronic monitoring
devices would enhance the rehabilitation of a probationer for
whom a curfew is a permissible condition. The monitors would not
only encourage compliance with curfew, but act as a reminder of
the probationer's conditional freedom. We cannot foresee the
possibility that third persons residing with the probationer will
themselves be exposed to cruel and unusual punishment by this use
of an electronic monitoring device, particularly since there
appears to be little chance that the device can be applied to
persons other than the probationer.

IV.

With respect to your fourth question, a requirement that a
monitoring device be attached to a telephone in the probationer's
home (so-called "passive" monitoring systems) does not change our
answers to your first two questions. There are four reasons for
this conclusion. First, it is clear that the devices you
describe are incapable of transmitting anything more than an
electrical signal or a voice exemplar of the probationer.
Second, as we concluded in our discussion of First Amendment
concerns, we do not believe that a probationer may object to the
employment of a device which requires him to provide voice
samples for the purposes of monitoring compliance with a
condition of probation. Cf. United States v. Franks, supra;
Macias v. State, supra. Third, whatever intrusion is occasioned
by devices which must be attached to a telephone, it is brief and
significantly less intrusive than other means available for
monitoring a probationer's progress. Compare Code Crim.Proc.
art. 42.12, s 6(a)(5). Fourth, the telephone requirement
notwithstanding, we remain convinced that electronic monitoring
devices ultimately serve the purposes of the probation process by
promoting the rehabilitation and reformation of the probationer
while providing for the protection of the public at large. We
hasten to add that this discussion should not imply that passive
monitoring systems are preferable to "active" monitoring systems.
Such a decision must be made in the first instance by those with
administrative authority and not by this office.

V.

To summarize, we conclude that the employment of electronic
monitoring devices as a condition of probation does not violate a
constitutionally protected interest of a probationer or a third
person residing in the probationer's home, provided the
probationer may be subjected to reasonable limitations on his
freedom of movement and associations. The attachment of
electronic monitoring devices to either a probationer's body or
to a telephone in the probationer's home does not violate a
constitutionally protected interest of the probationer or a third
person residing in the probationer's home. We caution that we
are here expressing no judgment regarding the reliability of any
particular monitoring system and the implications of that
reliability on the probation revocation process. See generally,
People v. Ryan, 510 N.Y.S.2d 828, 832 (N.Y.Crim.Ct.1987) (dicta
suggesting that in-depth scientific and technical testimony will
be required when the accuracy or reliability of electronic
monitoring devices is made an issue in probation revocation
proceedings).

SUMMARY

The employment of electronic monitoring devices as a condition
of probation does not violate a constitutionally protected
interest of a probationer or a third person residing in the
probationer's home, provided the probationer may be subjected to
reasonable limitations on his freedom of movement and
associations. The attachment of electronic monitoring devices to
either a probationer's body or to a telephone in the
probationer's home does not violate a constitutionally protected
interest of the probationer or a third person residing in the
probationer's home.